As filed with the Securities and Exchange Commission on May 8, 2020 | ||||
Registration No. 333- | ||||
UNITED STATES | ||||
Washington, D.C. 20549 | ||||
FORM S-3 | ||||
Ruth’s Hospitality Group, Inc. | ||||
Delaware incorporation or organization) | 72-1060618 Identification No.) | |||
1030 W. Canton Avenue, Suite 100,
Winter Park, FL 32789
(407) 333-7400
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
___________________
Alice G. Givens
Ruth’s Hospitality Group, Inc.
1030 W. Canton Avenue, Suite 100,
Winter Park, FL 32789
(407) 333-7400:
(Name, address, including zip code, and telephone number, including area code, of agent for service)
___________________
Copies of all communications, including communications sent to agent for service, should be sent to:
James S. Rowe
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
(312) 862-2000
Approximate date of commencement of proposed sale to the public: From time to time on or after the effective date of this registration statement.
___________________
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
400 International Parkway, Suite 325
Heathrow, Florida 32746
(407) 333-7440
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Robert M. Vincent
Executive Vice President and Chief Financial Officer
Ruth’s Hospitality Group, Inc.
400 International Parkway, Suite 325
Heathrow, Florida 32746
Tel.: (407) 333-7440
Fax: (407) 833-9625
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
James S. Rowe
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
(312) 862-2000
Approximate date of commencement of proposed sale to the public: From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||||
Common Stock, par value $0.01 per share(3) | 8,620,690 | $ | 4.745 | $ | 40,905,174.05 | $ | 4,749.10 | |||||||||
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐ | ||
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities act registration statement number of the earlier effective registration statement for the same offering. ☐ | ||
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐ | ||
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered(1) |
| Amount to be |
| Proposed Maximum |
| Proposed Maximum |
| Amount of Registration Fee(1)(2) |
Common Stock, par value $0.01 per share |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Preferred Stock, par value $0.01 per share |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Depositary Shares(3) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Warrants(4) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Subscription Rights(5) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Share Purchase Contracts |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Share Purchase Units |
| (1)(2) |
| (1)(2) |
| (1)(2) |
| (1)(2) |
Total |
| (1)(2) |
| (1)(2) |
| $75,000,000 |
| $9,735 |
| ||||||||
(1) | The proposed maximum per unit and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement and for each class in reliance on General Instruction II.D of Form S-3. An indeterminate number of the securities of each identified class to be offered at indeterminate prices is being registered pursuant to this registration statement with a maximum aggregate offering price not to exceed $75,000,000. Securities registered hereunder may be offered in U.S. dollars or the equivalent thereof in foreign currencies. The proposed maximum aggregate offering price has been estimated solely for |
(2) | Pursuant to Rule 457(i) under the Securities Act, the securities registered hereunder includes such indeterminate amount of securities as may be issued upon exercise, conversion or exchange of, pursuant to anti-dilution adjustments, or pursuant to a stock dividend, stock split or similar transaction with respect to securities that provide for such issuance, exercise, conversion, exchange, adjustment, stock split or similar transaction. Separate consideration may or may not be received for any of these securities. |
(3) | Each depositary share registered hereunder will be issued under a deposit agreement and |
(4) | Warrants represent rights to purchase common stock or preferred stock registered under this registration statement. |
(5) | The subscription rights to purchase shares of |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information contained in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not the solicitation ofsoliciting an offer to buy these securities in any statejurisdiction where the offer or sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 30, 2010
PROSPECTUS
8,620,690 Shares
Ruth’s Hospitality Group, Inc.
Common Stock
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Share Purchase Contracts
Share Purchase Units
_______________________
Common Stock
The selling stockholders named hereinWe may offer and sell from time to time up to 8,620,690 sharesin one or more offerings any combination of our common stock, covered bypreferred stock, depositary shares, warrants, subscription rights, share purchase contracts or share purchase units described in this prospectus.
This prospectus provides you with a general description of these securities. Each time we offer and sell these securities, we will provide the specific terms of any such offering of these securities in a supplement to this prospectus. The selling stockholdersapplicable prospectus supplement will receive allalso describe the specific manner in which we will offer these securities and may also supplement, update or amend information contained in this prospectus. You should carefully read this prospectus and any applicable prospectus supplement, as well as the documents incorporated by reference herein or therein, before you make an investment decision. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the proceeds from any salesoffering of the shares offered hereby. We will not receive any of the proceeds, but we will incur expenses in connection with the offering.such securities.
Our registration of the shares of common stock covered by this prospectus does not mean that the selling stockholders will offer or sell any of the shares. The selling stockholdersWe may sell the shares of common stock covered by this prospectusthese securities on a continuous or delayed basis, directly, through agents, dealers or underwriters as designated from time to time, on the Nasdaq Global Select Market or through a combination of these methods. If any exchange on which we may be listedagents, dealers or underwriters are involved in the future atsale of any securities, the prevailing market priceapplicable prospectus supplement will set forth their names and any applicable commissions or in any other manner specified under “Plan of Distribution” beginning on page 13 of this prospectus.discounts.
Our common stock is listed on the NasdaqNASDAQ Global Select Market under the symbol “RUTH.” On December 29, 2010, the last reported sale price of our common stock on the Nasdaq Global Select Market was $4.70 per share.
Investing in ourthese securities involves risks. You should refer to the risk factors included in our periodic reports and other information that we file with the Securities and Exchange Commission incorporated by reference inSee “Risk Factors” on page 3 of this prospectus and the applicable prospectus supplement and carefullyto read about factors you should consider that information before buying our securities.making an investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracydetermined if this prospectus is truthful or adequacy of this prospectus.complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2011.2020.
This prospectus is part of a registration statement on Form S–3 that we filed with the Securities and Exchange Commission or the “SEC,”(the “SEC”) using a “shelf” registration process. Specific information about the termsUnder this shelf process, we may from time to time sell any combination of an offeringshares of our common stock, preferred stock, depositary shares, warrants to purchase equity securities, subscription rights to purchase equity securities, share purchase contracts and share purchase units in one or more offerings.
Each time we use this prospectus to offer securities, we will be included inprovide you with a prospectus supplement relating to eachthat will describe the specific offeringamounts, prices and terms of shares.the securities being offered. The prospectus supplement may also add,supplement, update or change information includedcontained in this prospectus. Therefore, if there is any inconsistency between the information in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement.
We have not authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus, any related prospectus supplement or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should read bothassume that the information appearing in this prospectus and any related prospectus supplement to this prospectus is accurate as of the date on their respective covers, and that any information incorporated by reference herein or therein is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise.
To understand the terms of the securities described in this prospectus, you should carefully read any applicable prospectus supplement, together with additionalsupplement. You should also read the documents we have referred you to under “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” below for information about us. The shelf registration statement, including the exhibits thereto, can be read at the SEC’s website as described below under the caption “Where You Can Find More Information.”
We have prepared the information contained in this prospectus, any applicable prospectus supplement, any free writing prospectus and the documents incorporated by reference herein and therein that have been filed by us with the SEC. Neither we, the selling stockholders nor any underwriter have authorized anyone to provide you with any other information and neither we, the selling stockholders nor any underwriter take any responsibility for other information others may give you.
The information contained in this prospectus, in any prospectus supplement, in any free writing prospectus or in any document incorporated by reference is accurate only as of its date, regardless of the time of delivery of this prospectus or any sale of common stock. Our business, financial condition, results of operations and prospects may have changed since the dates of such respective documents.
This prospectus is not an offer to sell or solicitation of an offer to buy these shares of common stock in any circumstances under which or jurisdiction in which the offer or solicitation is unlawful.
Unless the context otherwise requires or as otherwise expressly stated, references in this prospectus toterms the “Company,” “we,” “us”“us,” and “our” and similar termsas used in this prospectus refer to Ruth’s Hospitality Group, Inc. and its directsubsidiaries unless the context otherwise requires. The phrase “this prospectus” refers to this prospectus and indirect subsidiaries on a consolidated basis. References to our “common stock” or our “preferred stock” refer toany applicable prospectus supplement, unless the common stock or preferred stock of context otherwise requires.
i
Overview
Ruth’s Hospitality Group, Inc.
is one of the largest upscale steakhouse companies in the world. The Ruth’s Chris Steak House (“Ruth’s Chris”) menu features a broad selection of high-quality USDA Prime grade steaks and other premium offerings served in Ruth’s Chris signature fashion—“sizzling” on a 500 degree plate and topped with butter and fresh parsley—complemented by other classic American steakhouse menu items. The Ruth’s Chris brand reflects its 55-year commitment to the core values instilled by its founder, Ruth Fertel, of caring for guests by delivering the highest quality food, beverages and genuine hospitality in a warm and inviting atmosphere. The Ruth’s Chris Steak House brand is one of the strongest in the upscale steakhouse segment of the restaurant industry, with high levels of brand awareness.i
WHERE YOU CAN FIND MORE INFORMATIONOur restaurants cater to special occasion diners and frequent customers, in addition to the business clientele traditionally served by upscale steakhouses, by providing a dining experience designed to appeal to a wide range of guests. We believe our focus on creating this broad appeal provides us with opportunities to expand into a wide range of markets, including many markets not traditionally served by upscale steakhouses.
We file annual, quarterly and special reports, proxy statementsoffer USDA Prime and other informationhigh-quality steaks that are aged and prepared to exact company standards and cooked in 1,800-degree broilers. We also offer veal, lamb, poultry and seafood dishes and a broad selection of appetizers. We complement our distinctive food offerings with an award-winning wine list. During the SEC. In addition, wefiscal year 2019, the average check was $86 per person at Company-owned Ruth’s Chris Restaurants.
As of December 29, 2019, there were 159 Ruth’s Chris Steak House restaurants, including 83 Company-owned restaurants, three restaurants operating under contractual agreements and 73 franchisee-owned restaurants, including 21 international franchisee-owned restaurants in Aruba, Canada, China, Hong Kong, Indonesia, Japan, Mexico, Singapore and Taiwan.
We were originally founded in 1965 and were reincorporated in Delaware on May 11, 2005. Our principal executive offices are located at 1030 W. Canton Avenue, Suite 100, Winter Park, FL 32789. Our telephone number is (407) 333-7440. Our website address is www.rhgi.com. We have filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus, which forms a part of the registration statement, does not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement and the exhibits and schedules filed therewith and in our reports and proxy statements and other information incorporated by reference herein. Any statements made ininto this prospectus concerning the provisions of legal documents are not necessarily completeinformation on our website, and you should read the documents that are filed as exhibitsnot consider it to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter. You can inspect and copy our reports, proxy statements and other information filed with the SEC, the registration statement on Form S-3 and the exhibits thereto at the Public Reference Room of the SEC, 100 F Street, N.E., Washington, D.C. 20549. You can obtain copies of these materials from the Public Reference Section of the SEC, 100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings will also be available to you on the SEC’s website at http://www.sec.gov and through the Nasdaq Global Select Market, 165 Broadway, New York, New York 10006, on which our common stock is listed. We maintain a website at http://www.rhgi.com. You may access our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with the SEC free of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. Except for the information incorporated by reference as noted below, our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allowsAn investment in the “incorporationsecurities offered by reference”this prospectus involves a number of risks. You should carefully consider before making an investment decision:
the informationrisk factors described in our Annual Report on Form 10-K, filed by uson February 27, 2020, and our Quarterly Report on Form 10-Q, filed on May 8, 2020;
the risk factors described under the caption “Risk Factors” in any applicable prospectus supplement; and
any risk factors set forth in our other filings with the SEC into this prospectus, which means that important information can be disclosedmade pursuant to you by referring you to those documents and those documents will be considered part of this prospectus. Information that we file later with the SEC will automatically update and supersede the previously filed information. The documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, (other than portions of these documents deemed to be “furnished” or not deemed to be “filed,” including the portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K paragraphs (d)(1), (d)(2), (d)(3) or (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, including any exhibits included with such Items)which are incorporated by reference herein:herein.
Our Annual Report on Form 10-K forEach of the year ended December 27, 2009 filed on March 5, 2010, including the information incorporated by reference from our Proxy Statement filed with the SEC on April 12, 2010 in connection with the solicitation of proxies for the 2010 Annual Meeting of Stockholders on May 26, 2010.
Our Quarterly Reports on Form 10-Q for the quarters ended March 28, 2010, June 27, 2010risks described below and September 26, 2010, respectively, filed on May 7, 2010, August 4, 2010 and November 1, 2010, respectively.
Our Current Reports on Form 8-K, as filed with the SEC on the following dates: January 5, 2010 (only with respect to the report under Item 8.01), January 11, 2010 (only with respect to the report under Item 8.01), January 12, 2010, January 15, 2010, January 22, 2010, February 2, 2010, February 17, 2010, February 24, 2010, April 8, 2010 and May 27, 2010.
Our Proxy Statement on Schedule 14A filed with the SEC on January 21, 2010 in connection with the solicitation of proxies for the Special Meeting of Stockholders on February 9, 2010.
Our Proxy Statement on Schedule 14A filed with the SEC on April 12, 2010 in connection with the solicitation of proxies for the 2010 Annual Meeting of Stockholders on May 26, 2010.
The description of our common stock contained in the Registration Statement on Form 8-A dated August 9, 2005 filed with the SEC to register such securities under the Exchange Act including any amendment or report filed for the purposeother documents noted above could materially and adversely affect our business, operations, financial condition, results of updating such description.
Any statement containedoperations, cash flow and liquidity, and could result in a document incorporatedpartial or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposescomplete loss of this prospectus toyour investment. Additionally, the extent that a statement containedrisks and uncertainties described in this prospectus, or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Our Commission File Number is 000-51485.
If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to:
Ruth’s Hospitality Group, Inc. 400 International Parkway, Suite 325 Heathrow, Florida 32746 (407) 333-7440 Attention: Corporate Secretary
You should rely only on the information contained in, or incorporated by reference in, this prospectus. We have not authorized anyone else to provide you with different or additional information. This prospectus does not offer to sell or solicit any offer to buy any notes in any jurisdiction where the offer or sale is unlawful. You should not assume that the information in this prospectussupplement or in any document incorporated by reference is accurate asherein or therein are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us, or that we currently believe to be immaterial, may also adversely affect our business, operations, financial condition, results of any date other than the date on the front cover of the applicable document.operations, cash flow and liquidity.
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. The words “believes,” “projects,” “anticipates,” “plans,” “expects,” “intends,” “estimates” and similar expressions, as well as future or conditional verbs such as “will,” “should,” “would,” and “could,” are intended to identify forward-looking statements. These forward-looking statements represent management’s current reasonable expectations and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance and achievements, or industry results, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. These factors, risks, and uncertainties include but are not limited to the factors described under “Forward-Looking Statements” and “Risk Factors” in our most recent Annual Report on Form 10-K and any subsequently filed Quarterly Reports on Form 10-Q, and the following:10-Q.
changes in economic conditions and general trends;
the loss of key management personnel;
the effect of market volatility on our stock price;
health concerns about beef or other food products;
the effect of competition in the restaurant industry;
changes in consumer preferences or discretionary spending;
reductions in the availability of, or increases in the cost of, USDA Prime grade beef, fish and other food items;
labor shortages or increases in labor costs;
the impact of federal, state or local government regulations relating to our employees, the sale or preparation of food, the sale of alcoholic beverages and the opening of new restaurants;
harmful actions taken by our franchisees;
our ability to protect our name and logo and other proprietary information;
the impact of litigation;
the restrictions imposed by our credit agreement;
failure of internal controls over financial reporting; and
influence of one of our principal stockholders.
There may be other factors that may cause our actual results to differ materially from the forward-looking statements. Our actual results, performance or achievements could differ materially from those expressed in, or implied by, the forward-looking statements. We can give no assurances that any of the events anticipated by the forward-looking statements will occur or, if any of them does, what impact they will have on our results of operations and financial condition. You should carefully read the factors described in the “Risk Factors” section of this prospectus and the documents incorporated by reference into this prospectus for a description of certain risks that could, among other things, cause our actual results to differ from these forward-looking statements.
Forward-looking statements speak only as of the date they were made. We undertake no obligation to update or revise forward-looking statements to reflect events or circumstances that arise after the date made or to reflect the occurrence of unanticipated events, other than as required by law.
Ruth’s Hospitality Group, Inc. is a leading restaurant company focused on the upscale dining segment. The Ruth’s Chris Steak House (“Ruth’s Chris”) menu features a broad selection of high-quality USDA Prime and Choice grade steaks and other premium offerings served in Ruth’s Chris’ signature fashion—“sizzling” and topped with seasoned butter—complemented by other traditional menu items inspired by our New Orleans heritage. The Ruth’s Chris restaurants reflect the more than 45-year commitment to the core values instilled by our founder, Ruth Fertel, of caring for our guests by delivering the highest quality food, beverages and service in a warm and inviting atmosphere. We believe that Ruth’s Chris is one of the strongest brands in the upscale steakhouse category.
Our restaurants cater to families and special occasion diners, in addition to the business clientele traditionally served by upscale steakhouses, by providing a dining experience designed to appeal to a wide range of guests. We believe our focus on creating this broad appeal provides us with opportunities to expand into a wide range of markets, including many markets not traditionally served by upscale steakhouses.
We offer USDA Prime and Choice grade steaks that are aged and prepared to exact company standards and cooked in 1,800-degree broilers. We also offer veal, lamb, poultry and seafood dishes, and a broad selection of appetizers, including New Orleans-style barbequed shrimp, mushrooms stuffed with crabmeat, shrimp remoulade, Louisiana seafood gumbo, onion soup au gratin, crabtini and seven salad variations. We complement our distinctive food offerings with an award-winning wine list, typically featuring bottles priced at between $24 and $2,000 and many selections offered by the glass. The current average check is $68.
As of September 26, 2010, there were 131 Ruth’s Chris restaurants, of which 64 were company-owned and 67 were franchisee-owned, including 14 international franchisee-owned restaurants in Aruba, Mexico, Hong Kong, Taiwan, Japan, Canada and the United Arab Emirates.
On February 19, 2008, we completed the acquisition of the operating assets and intellectual property of Mitchell’s Fish Market, operating under the names Mitchell’s Fish Market and Columbus Fish Market, and Cameron’s Steakhouse, operating under the names Cameron’s Steakhouse and Mitchell’s Steakhouse from Cameron Mitchell Restaurants, LLC for approximately $93.0 million, including capitalized acquisition costs. There are currently 20 Mitchell’s Fish Markets and three Cameron’s Steakhouses with locations in the Midwest, Northeast, and Florida. Mitchell’s Fish Market is an award-winning, upscale, yet comfortable, seafood restaurant and bar recognized for its high-quality food, contemporary dining atmosphere, and excellent service. We believe that Mitchells’ and Cameron’s’ focus on upscale casual dining complements our brand.
Mitchell’s Fish Market is committed to fresh seafood and all of its seafood is flown in daily. Although the menu changes frequently based on availability and season, it includes more than 80 seafood choices, including fish from all over the world. The current average check is $34. The Cameron’s Steakhouses represent a sophisticated 21st century update of the traditional upscale American steakhouse.
We were originally founded in 1965 and were reincorporated in Delaware on May 11, 2005. Our principal executive offices are located at 400 International Parkway, Suite 325, Heathrow, FL 32746. Our telephone number is (407) 333-7440. Our website address is www.rhgi.com.
Our business is subject to uncertainties and risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by our Quarterly Reports on Form 10-Q and other filings we make with the SEC. Our business, financial condition, liquidity or results of operations could be materially adversely affected by any of these risks.
We will not receive any ofUnless otherwise specified in a prospectus supplement, we intend to use the net proceeds from the sale of our common stock bysecurities for general corporate purposes, which may include, among other things, the selling stockholders.
This prospectus relates torepayment of debt, working capital, capital expenditures and acquisitions. We retain broad discretion over the possible resale of up to 8,620,690 shares of our common stock issuable upon the conversion of shares of Series A 10% Convertible Preferred Stock (the “Convertible Preferred Stock”) by affiliates of Bruckmann, Rosser, Sherrill & Co. Management L.P. (collectively, “BRS”).
The following table sets forth information with respect to the beneficial ownership of our common stock held as of December 15, 2010 by the selling stockholders, the number of shares being offered hereby and information with respect to shares to be beneficially owned by the selling stockholders assuming conversion of all Convertible Preferred Stock and that all the shares registered hereunder are sold. The percentage ownership before the offering is based on 35,156,459 shares of our common stock outstanding as of December 15, 2010, which includes 1,103,000 shares of unvested restricted stock and 71,950 shares of our common stock held in treasury.
| Shares Beneficially Owned Prior to the Offering | Shares Offered Hereby | Shares Beneficially Owned After the Offering (2) | ||||||||||||||||||
| Number | Percentage | Number | Number | Percentage | ||||||||||||||||
Bruckmann, Rosser, Sherrill & Co. III, L.P. (1) | 6,833,694 | 19.4 | % | 6,833,694 | — | 0 | % | |||||||||||||
BRS Coinvestor III, L.P. (1) | 1,786,996 | 5.1 | % | 1,786,996 | — | 0 | % | |||||||||||||
Material Relationships
Securities Purchase Agreement
On December 22, 2009, we entered into a Securities Purchase Agreement with BRS, pursuant to which BRS acquired 25,000 shares of a new class of preferred stock in a private placement transaction for an aggregate purchase price of $25.0 million. Each outstanding share of Convertible Preferred Stock is entitled to approximately 344.828 votes (one vote per share of common stock issuable upon the conversionuse of the Convertible Preferred Stock), resulting in BRS owning an aggregate of 24.5% of our outstanding voting shares as of December 15, 2010. In addition, for so long as BRS beneficially owns 5% or more of our common stock on an as converted basis, BRS, voting as a separate class tonet proceeds
from the exclusionsale of the holders of our common stock, is entitled to designate one individual to our board of directors who mustsecurities offered hereby. Net proceeds may be an employee of BRS or one of its affiliates. The Securities Purchase Agreement also provides BRS with preemptive rights in connection with a proposed issuance or sale of our common stock or securities exercisable for or convertible into shares of our common stock. Pursuant to the Securities Purchase Agreement, on February 12, 2010, we paid BRS (i) a funding
fee equal to $625,000 and (ii) an amount equal to $500,000 for reimbursement of BRS’s reasonable and documented out-of-pocket fees and expenses.
Registration Rights Agreement
On February 12, 2010, in connection with the issuance of the Convertible Preferred Stock, we entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with BRS. The Registration Rights Agreement provides BRS, after February 12, 2011, with up to three demand registrations and the right to request that any registrable securities it holds be included in any registration statement we file for our own account or the account of any holder of our common stock. Also under the terms of the Registration Rights Agreement, we agreed to prepare and file an initial shelf registration statement covering the resale of all registrable securities held by BRS in an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Acttemporarily invested prior to November 12, 2010use in short- and such registration statement is requiredmedium-term investments, including, but not limited to, be declared effective by the SEC prior to February 12, 2011. On November 5, 2010, BRS agreed to extend the deadline for filing such registration statement until December 31, 2010. The registration statement of which this prospectus forms a part is being filed to satisfy that filing requirement. Pursuant to the Registration Rights Agreement, we agreed to pay registration-related fees and expenses. We also agreed to indemnify BRS for certain losses in connection with such registrations.marketable securities.
Harold O. Rosser II, who is a member of the board of managers of the Fund and the Co-Invest Fund, is a member of our board of directors. He was appointed pursuant to the terms of the Certificate of Designations for the Convertible Preferred Stock, whereby we granted BRS the right to designate one individual to our board of directors.
DESCRIPTIONDESCRIPTION OF OUR CAPITAL STOCK
The following description of registered securities of Ruth’s Hospitality Group, Inc. is intended as a summary only. As used in this “Description of Our Capital Stock,” the terms “Company,” “we,” “our” and “us” refer to Ruth’s Hospitality Group, Inc. and do not, unless the context otherwise indicates, include our subsidiaries.
Authorized Capitalization
Our authorized capital stock is only a summaryconsists of their material provisions. We encourage you to read our Amended and Restated Certificate of Incorporation, which is incorporated by reference into the registration statement of which this prospectus forms a part.
Authorized Capitalization
As of the date of this prospectus, we are authorized to issue up to 100,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of undesignated preferred stock, par value $0.01 per share (the “Blank Check Preferred Stock”Stock“), including 25,000 shares. Our common stock is registered under Section 12(b) of Convertible Preferred Stock. Asthe Securities Exchange Act of December 15, 2010, we had outstanding 35,156,459 shares1934, as amended.
Common Stock
This description of our common stock (which includes 1,103,000 sharesis based upon, and qualified by reference to, our Amended and Restated Certificate of unvested restricted stockIncorporation, as amended (our “Certificate of Incorporation”), our Amended and 71,950 sharesRestated By-laws (our “By-laws”) and applicable provisions of Delaware corporate law (the “DGCL”). You should read our common stock held in treasury)Certificate of Incorporation and 25,000 shares of our Convertible Preferred Stock.By-laws, which are incorporated by reference as Exhibits 3.1, 3.2, 3.3 and 3.4 respectively, to the Annual Report on Form 10-K, for the provisions that are important to you.
Common Stock
Voting Rights
Each holder of our common stock is entitled to one vote for each share on all matters to be voted upon by the stockholders and there are no cumulative rights. Directors areUnless a different vote is required by express provisions of an applicable law or otherwise stated in the Certificate of Incorporation or By-laws, a matter submitted for stockholder action generally electedis approved by a pluralitythe affirmative vote of the votesmajority of the shares entitled to vote in the election of directors present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders at whichstockholders. Other than in a contested election where directors are elected. However, for so long as BRS continues to beneficially own 5% or more of our common stock on an as converted basis, BRS, voting aselected by a separate classplurality vote, a director nominee shall be elected to the exclusionboard if the votes of shares of capital stock of the holders of our common stock, isCompany present in person or represented by proxy at the meeting and entitled to designate one individual to our boardvote in the election of directors who must be an employeecast “for” such nominee’s election exceed the votes of BRSshares of capital stock of the Company present in person or onerepresented by proxy at the meeting and entitled to vote in the election of its affiliates.directors cast “against” such nominee’s election (with “abstentions” and “broker non-votes” not counted as votes cast either “for” or “against” that nominee’s election).
Dividend Rights
Subject to preferences to which holders of preferred stock may be entitled, holders of our common stock are entitled to receive ratably the dividends, if any, as may be declared from time to time by the board of directors out of funds legally available therefor.
Liquidation Rights
If there is a liquidation, dissolution or winding up of our company, holders of our common stock would be entitled to share in our assets remaining after the payment of liabilities, and the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock.
Other Matters
Holders of our common stock have no preemptive or conversion rights or other subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. The issued and outstanding shares of our common stock are and any shares of common stock to be issued by us in connection with a future offering will be, fully paid and non-assessable. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock which we have or may designate in the future.
Our Amended and Restated Certificate of Incorporation authorizes our board of directors to establish one or more series of preferred stock. Unless required by law or by any stock exchange on which our common stock is listed, the authorized shares of Blank Check Preferred Stock will be available for issuance without further action by you.our stockholders. Our board of directors is authorized to determine or alter the powers, preferences and rights, and the
qualifications, limitations and restrictions granted to or imposed upon any wholly unissued series of Blank Check Preferred Stock, and within the limitations or restrictions stated in any resolution or resolutions of our board of directors originally fixing the number of shares constituting any series of Blank Check Preferred Stock, to increase or decrease (but not below the number of shares of any such series of preferred stock then outstanding) the number of shares of any such series of Blank Check Preferred Stock, and to fix the number of shares of any series of Blank Check Preferred Stock. In the event that the number of shares of any series of Blank Check Preferred Stock shall be so decreased, the shares constituting such decrease shall resume the status which such shares had prior to the adoption of the resolution originally fixing the number of shares of such series of Blank Check Preferred Stock subject to the requirements of applicable law.
Series A 10% Convertible Preferred Stock
General
The Convertible Preferred Stock is our most senior equity security. The Convertible Preferred Stock is convertible into our common stock. The initial conversion price is $2.90, and is subject to downward adjustment in the future upon the occurrence of certain dilutive events, should they occur. The Convertible Preferred Stock has no stated maturity, however, the shares of Convertible Preferred Stock are subject to redemption in certain circumstances as described below under “—Redemption.”
Ranking
The Convertible Preferred Stock has an initial liquidation preference of $1,000 per share and ranks senior to our common stock and any other stock that ranks junior to the Convertible Preferred Stock with respect to distributions of assets upon liquidation, dissolution or winding up of our company. So long as the Convertible Preferred Stock is outstanding, without the consent of a majority of the shares of Convertible Preferred Stock, no dividends, repurchases or other payments, subject to certain exclusions, may be made on any junior stock. In addition, we may not repurchase any class of stock ranking equal with the Convertible Preferred Stock and may only pay dividends on such stock if all accumulated and accrued but unpaid dividends on the Convertible Preferred Stock are paid.
The shares of Convertible Preferred Stock are equity interests in our Company and do not constitute indebtedness. In the event of bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to us, our indebtedness will effectively rank senior to the Convertible Preferred Stock, and the holders of our indebtedness will be entitled to the satisfaction of any amounts owed to them prior to the payment of the then applicable liquidation preference of any capital stock, including the Convertible Preferred Stock.
Liquidation Rights
If we voluntarily or involuntarily liquidate, dissolve or wind up our affairs, holders of the Convertible Preferred Stock will be entitled to receive out of our assets available for distribution to stockholders, after satisfaction of liabilities to creditors, if any, and before any distribution of assets is made on our common stock or any of our other shares of stock ranking junior as to such a distribution to the Convertible Preferred Stock, a liquidating distribution in the amount that is the greater of (a) the aggregate liquidation preference of all such holder’s shares of Convertible Preferred Stock plus any accrued but unpaid dividends thereon and (b) the amount such holder would receive as a holder of common stock assuming the prior conversion of each of its shares of Convertible Preferred Stock.
In any such distribution, if our assets are not sufficient to pay the liquidation preferences in full to all holders of the Convertible Preferred Stock, the amounts paid to the holders of Convertible Preferred Stock will be paid pro rata in accordance with the respective aggregate liquidation preferences of those holders. In any such distribution, the “liquidation preference” of any holder of Convertible Preferred Stock means the initial liquidation preference of $1,000plus any dividends paid by increasing the liquidation preference of the shares of
Convertible Preferred Stockplus any accrued but unpaid dividends. If the liquidation preference has been paid in full to all holders of the Convertible Preferred Stock then the holders of our other stock shall be entitled to receive all our remaining assets according to their respective rights and preferences.
Dividends
Dividends on the Convertible Preferred Stock accrue at an annual rate of 10% of the then applicable liquidation preference of such Convertible Preferred Stock and are payable on a quarterly basis when, as, and if declared by our board of directors. We may elect to satisfy our obligation to pay quarterly dividends either in cash, or, by increasing the liquidation preference of the shares of Convertible Preferred Stock. In the event a dividend is declared with respect to the shares of our common stock, the holders of the Convertible Preferred Stock shall be entitled to receive such dividend in the amount that they would have received had they converted their shares of Convertible Preferred Stock into common stock immediately prior to the record date for such dividend.
Conversion; Anti-Dilution Adjustments
Each share of Convertible Preferred Stock is convertible into our common stock in an amount equal to the then applicable liquidation preference of the Convertible Preferred Stock (plus accrued and unpaid dividends) divided by the then applicable conversion price. The initial conversion price is $2.90, and is subject to downward adjustment in the future upon the occurrence of certain dilutive events, should they occur. Based on an initial conversion price of $2.90 and a liquidation preference of $1,000, each share of Convertible Preferred Stock is convertible into approximately 344.828 shares of our common stock. The conversion price will be subject to customary anti-dilution adjustments including, among other things:
issuances of shares of common stock as a dividend or distribution on shares of the common stock, to the extent the holders of the Convertible Preferred Stock are not entitled to receive such dividends or distributions, and share splits or share combinations;
issuances of rights, warrants or options (other than options issued under our current or future equity incentive plans) entitling a holder to subscribe for or purchase shares of common stock at a price per share less than fair market value, to the extent the holders of the Convertible Preferred Stock are not entitled to subscribe for or purchase such shares;
distributions of shares of capital stock, evidences of indebtedness or other assets or property to all or substantially all holders of common stock, subject to certain exclusions, and certain spin-off transactions, in each case to the extent the holders of the Convertible Preferred Stock are not entitled to participate in the distribution or spin-off transaction pursuant to its participation rights;
issuances of common stock at less than fair market value (subject to certain excluded issuances); and
payments in respect of repurchases of common stock by us or any of our subsidiaries for greater than fair market value.
Automatic Conversion
In addition, at any time after February 12, 2012, if the closing price of our common stock is greater than or equal to 225% of the then applicable conversion price for a period of 20 trading days over any 30 consecutive trading days occurring completely after February 12, 2012, then we may cause the conversion of all or part of the Convertible Preferred Stock into common stock at the then applicable conversion price.
Redemption
After February 12, 2015, we may redeem all or any portion of the Convertible Preferred Stock at the then applicable liquidation preference plus an amount equal to accrued and unpaid dividends not previously added tothe liquidation preference on such shares of Convertible Preferred Stock. In addition, following February 12,2017 or upon a “change of control” (as defined in the Certificate of Designations of the Convertible Preferred
Stock), the holders of the Convertible Preferred Stock may require us to redeem any or all outstanding shares of Convertible Preferred Stock, in whole or in part, at the then applicable liquidation preference of such Convertible Preferred Stock plus an amount equal to accrued and unpaid dividends not previously added to the liquidation preference on such shares of Convertible Preferred Stock.
Voting Rights
The holders of the Convertible Preferred Stock are entitled to vote upon all matters upon which holders of common stock have the right to vote, and, in connection with such matters, are entitled to such amount of votes equal to the largest number of whole shares of common stock into which the Convertible Preferred Stock may be converted. The votes of the Convertible Preferred Stock are counted together with all other shares of capital stock having general voting powers and not separately as a class.
For so long as BRS continues to beneficially own 5% or more of our common stock on an as converted basis, BRS, voting as a separate class to the exclusion of the holders of our common stock, is entitled to designate one individual to our board of directors, who must be an employee of BRS or one of its affiliates.
So long as any shares of Convertible Preferred Stock remain outstanding, we will not adopt or make, without the affirmative vote or consent of the holders of at least a majority of the outstanding Convertible Preferred Stock, given in person or by proxy, either in writing or at a meeting:
any amendment to our Amended and Restated Certificate of Incorporation or Restated By-laws that would adversely affect the rights of the holders of the Convertible Preferred Stock;
any amendment, alteration or change to the rights, preferences and privileges of the Convertible Preferred Stock;
any declaration of, or payment in respect of, any dividend or other distribution upon any shares of capital stock ranking equally to the Convertible Preferred Stock, referred to herein as the parity stock, or junior to the Convertible Preferred Stock, including the common stock, referred to herein as the junior stock;
any redemption, repurchase or acquisition of any parity stock, junior stock or any capital stock of any of our subsidiaries (subject to customary exceptions); and
the authorization of, issuance of, or reclassification into, parity stock (including additional shares of Convertible Preferred Stock), capital stock that would rank senior to the Convertible Preferred Stock or debt securities convertible into capital stock.
Anti-Takeover Effects of Various Provisions of Delaware Law andthe DGCL, Our Amended and Restated Certificate of Incorporation and Restated By-laws
Provisions of the Delaware General Corporation Law (the “DGCL”)DGCL and our Amended and Restated Certificate of Incorporation and Restated By-laws could make it more difficult to acquire us by means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below, are expected to discourage types of coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
. We are subject to Section 203 of the DGCL, an anti-takeover statute. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years following the time the person became an interested stockholder, unless, (with certain
exceptions)prior to that time: (1) the corporation’s board of directors approved either the business combination or the transaction that resulted in which the person becamestockholder becoming an interested stockholder, is approved in a prescribed manner.(2) at least two-thirds of the outstanding shares not owned by that interested stockholder approve the business combination, or (3) upon becoming an interested stockholder, that stockholder owned at least 85% of the outstanding shares, excluding those held by officers, directors and some employee stock plans. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns (or within three years prior to the determination of interested stockholder status, did own) 15 percent or more of a corporation’s voting stock. The existence of this provision would be expected to have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, including discouraging attempts that might result in a premium over the market price for the shares of common stock held by stockholders. Because our board of directors approved the transactions which resulted in BRS becoming an “interested stockholder,” the provisions of Section 203 do not apply to BRS.
No Cumulative Voting
The DGCL provides that stockholders are denied the right to cumulate votes in the election of directors unless our Amended and Restated Certificate of Incorporation provides otherwise. Our Amended and Restated Certificate of Incorporation does not provide for cumulative voting.
Stockholder Action by Written Consent; Calling of Special Meeting of Stockholders
Our Amended and Restated Certificate of Incorporation provides that, at any time during which our common stock is registered under Section 12 of the Exchange Act, stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by written consent in lieu of a meeting, and that special meetings of our stockholders may be called only by a majority of our board of directors or by the chairman of the board of directors. However, in any case in which holders of the Convertible Preferred Stock are entitled to vote as a separate series to the exclusion of holders of our common stock, holders of the Convertible Preferred Stock may take action by written consent.
Authorized but Unissued Shares.
Our authorized but unissued shares of common stock and preferred stock will be available for future issuance without stockholder approval. We may use additional shares for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Supermajority Provisions
No Cumulative Voting. The DGCL provides that stockholders are denied the right to cumulate votes in the election of directors unless our Certificate of Incorporation provides otherwise. Our Certificate of Incorporation does not provide for cumulative voting.
Stockholder Action by Written Consent; Calling of Special Meeting of Stockholders. Our Certificate of Incorporation provides that, at any time during which our common stock is registered under Section 12 of the Exchange Act, stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by written consent in lieu of a meeting, and that special meetings of our stockholders may be called only by a
majority of our board of directors or by the chairman of the board of directors.
Advance Notice Provisions. Our By-laws provide that a stockholder must notify us in writing, within timeframes specified in the By-laws, of any stockholder nomination of a director and of any other business that the stockholder intends to bring at a meeting of stockholders.
Supermajority Provisions. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless either a corporation’s certificate of incorporation or bylaws require a greater percentage. Our Amended and Restated Certificate of Incorporation and Restated By-laws provide that the affirmative vote of holders of at least 66 2/3% 2/3% of the total votes eligible to be cast in the election of directors will be required to amend, alter, change or repeal our Restated By-laws and specified charter provisions, and the affirmative vote of holders of at least 80% of our common stock will be required to amend, alter, change or repeal provisions of our Amended and Restated Certificate of Incorporation related to corporate opportunities and transactions with Madison Dearborn Capital Partners III, LP and Madison Dearborn Partners, LLC or affiliates and investment funds of such entities (“Madison Dearborn”). See “—Corporate“Corporate Opportunities and Transactions with Madison Dearborn.” This requirement of a super-majority vote to approve amendments to our Amended and Restated Certificate of Incorporation and Restated By-laws could enable a minority of our stockholders to exercise veto power over any such amendments.
Corporate Opportunities and Transactions with Madison Dearborn
InArticle 9 of our Certificate of Incorporation contains provisions regarding Madison Dearborn, in recognition that certain directors, officers, stockholders, members, managers and/or employees of Madison Dearborn and its affiliates and investment funds (collectively with Madison Dearborn, the “Madison Dearborn Entities”) may
serve as one or more of our directors and/or officers, and that the Madison Dearborn Entities may engage in similar activities or lines of business that we do, our Amended and Restateddo. Our Certificate of Incorporation provides for the allocation of certain corporate opportunities between us and the Madison Dearborn Entities. Specifically, none of the Madison Dearborn Entities or any director, officer, stockholder, member, manager or employee of the Madison Dearborn Entities has any duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business that we do. In the event that any Madison Dearborn Entity acquires knowledge of a potential transaction or matter which may be a corporate opportunity for itself and us, we will not have any expectancy in such corporate opportunity, and the Madison Dearborn Entity will not have any duty to communicate or offer such corporate opportunity to us and may pursue or acquire such corporate opportunity for itself or direct such opportunity to another person. In addition, if a director or officer of our company who is also a director, officer, member, manager or employee of any Madison Dearborn Entity acquires knowledge of a potential transaction or matter which may be a corporate opportunity for us and a Madison Dearborn Entity, we will not have any expectancy in such corporate opportunity unless such corporate opportunity is expressly offered to such person solely in his or her capacity as a director or officer of our company.
In recognition that we may engage in material business transactions with the Madison Dearborn Entities, from which we are expected to benefit, our Amended and Restated Certificate of Incorporation provides that any ofsets forth ways in which our directors orand officers who are also directors, officers, stockholders, members, managers and/or employees of any Madison Dearborn Entity will have fully satisfied and fulfilled his or her fiduciary duty to us and our stockholders with respect to such transaction, if:
the transaction was approved, after being made aware of the material facts of the relationship between each of the Company or a subsidiary thereof andbusiness transactions that we may engage in with the Madison Dearborn Entity and the material terms and facts of the transaction, by (1) an affirmative vote of a majority of the members of our board of directors who do not have a material financial interest in the transaction (“Disinterested Persons”) or (2) an affirmative vote of a majority of the members of a committee of our board of directors consisting of members who are Disinterested Persons;
the transaction was fair to us at the time we entered into the transaction; or
the transaction was approved by an affirmative vote of the holders of a majority of shares of our common stock entitled to vote, excluding the Madison Dearborn Entities and any holder who has a material financial interest in the transaction.
Entities. Holders of our securities will be deemed to have received notice of and consented to these provisions of our Amended and Restated Certificate of Incorporation. Any amendment to the foregoing provisions of our Amended and Restated Certificate of Incorporation requires the affirmative vote of at least 80% of the voting power of all shares of our common stock then outstanding.
Listing
Our common stock is listed and traded on the Nasdaq Global Select Market under the symbol “RUTH.”
Transfer Agent
The transfer agent for our common stock is American Stock Transfer & Trust Company.
Miscellaneous
Holders of our common stock have no preemptive or other rights to subscribe for or purchase additional securities of ours. No personal liability will attach to holders of our common stock under the laws of the State of Delaware. All of the outstanding shares of our common stock are fully paid and nonassessable.
The rights of holders of the commonpreferred stock offered hereby may be adversely affected by the rights of holders of any shares of preferred stock that may be issued in the future. The commonpreferred stock will be, when issued, fully paid and nonassessable.
PLANDESCRIPTION OF DISTRIBUTIONDEPOSITARY SHARES
The following description of the depositary shares and terms of the deposit agreement is a summary. It summarizes only those aspects of the depositary shares and those portions of the deposit agreement which we believe will be most important to your decision to invest in our depositary shares. There may be other provisions in the deposit agreement and the depositary receipt relating to the depositary shares which are also important to you. You should read these documents for a full description of the terms of the depositary shares. The forms of the deposit agreement and the depositary receipt will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
General
We are registering 8,620,690may choose to offer from time to time fractional interests in our shares of our common stock for possible saleor preferred stock. If we do so, we will issue fractional interests in our common stock or preferred stock, as the case may be, in the form of depositary shares. Each depositary share would represent a fraction of a share of common stock or a fraction of a share of a particular series of preferred stock, as the case may be, and would be evidenced by a depositary receipt.
We will deposit the shares of common stock or preferred stock represented by depositary shares under a deposit agreement between us and a depositary which we will name in the applicable prospectus supplement. Subject to the terms of the deposit agreement, as an owner of a depositary share you will be entitled, in proportion to the applicable fraction of a share of common stock or preferred stock represented by the selling stockholders.depositary share, to all the rights and preferences of the common stock or preferred stock, as the case may be, represented by the depositary share, including, as the case may be, dividend, voting, conversion, redemption, subscription and liquidation rights.
Dividends and Other Distributions
The selling stockholdersdepositary will distribute all payments of cash dividends or other cash distributions received in respect of the common stock or preferred stock, as the case may be, in proportion to the numbers of the depositary shares owned by the applicable holders on the relevant record date. The depositary will distribute only an amount, however, that can be distributed without attributing to any holder of depositary shares a fraction of one cent, and any permitted transfereesbalance not so distributed will be added to and treated as part of the next sum received by the depositary for distribution to record holders of depositary shares.
If there is a non-cash distribution, the depositary will distribute property received by it to the record holders of depositary shares entitled to it, unless the depositary determines that it is not feasible to make the distribution. If this happens, the depositary may, with our approval, sell the property and distribute the net sale proceeds to the holders. The deposit agreement will also contain provisions relating to the manner in which any subscription or assignees thereofsimilar rights that we offer to holders of the preferred stock will be made available to the holders of depositary shares.
Redemption of Depositary Shares
If we redeem common stock or a series of preferred stock represented by depositary shares, the depositary shares will be redeemed from the redemption proceeds received by the depositary. The depositary will mail notice of redemption not less than 30, and not more than 60, days before the date fixed for redemption to the record holders of the depositary shares to be redeemed at their addresses appearing in the depositary’s books. The redemption price for each depositary share will be equal to the applicable fraction of the redemption price for each share of common stock or preferred stock, as the case may be, payable in relation to the redeemed common stock or preferred stock. Whenever we redeem shares of common stock or preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing, as the case may be, fractional interests in the shares of common stock or preferred stock redeemed. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot, proportionately or by any other equitable method as the depositary may determine.
After the date fixed for redemption, the depositary shares called for redemption will no longer be considered outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the cash, securities or other property payable upon the redemption and any cash, securities or other property to which the holders of the redeemed depositary shares were entitled upon surrender to the depositary of the depositary receipts evidencing the depositary shares.
The amount distributed in any of the foregoing cases will be reduced by any amount required to be withheld by us or the depositary on account of any taxes.
Voting the Depositary Shares
Upon receipt of notice of any meeting at which you are entitled to vote, as holder of fractional interests in common stock or preferred stock, the depositary will mail to you the information contained in that notice. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary how to vote the amount of the common stock or preferred stock represented by that holder’s depositary shares. The record date for the depositary shares will be the same date as the record date for the common stock or preferred stock, as the case may be. The depositary will endeavor, to the extent practicable, to vote the amount of the common stock or preferred stock, as the case may be, represented by the depositary shares in accordance with those instructions. We will agree to take all reasonable action which the depositary may deem necessary to enable the depositary to do so. The depositary will abstain from voting shares of the common stock or preferred stock, as the case may be, if it does not receive specific instructions from you.
Amendment and Termination of Depositary Agreement
We may enter into an agreement with the depositary at any time to amend the form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement. However, the holders of a majority of the depositary shares must approve any amendment which materially and adversely alters the rights of the existing holders of depositary shares. We or the depositary may terminate the deposit agreement only if (a) all outstanding depositary shares issued under the agreement have been redeemed or (b) a final distribution in connection with any liquidation, dissolution or winding up has been made to the holders of the depositary shares
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will also pay charges of the depositary in connection with the initial deposit of the preferred shares and any redemption of the preferred shares. Holders of depositary shares will pay transfer and other taxes and governmental charges and such other charges as are expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to resign, and we may at any time remove the depositary. Any resignation or removal will take effect when a successor depositary has been appointed and has accepted the appointment. Such appointment must occur within 60 days after delivery of the notice of resignation or removal. The successor depositary must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The depositary will forward all reports and communications from us which are delivered to the depositary and which we are required or otherwise determine to furnish to holders of common stock or preferred stock, as the case may be.
We and the depositary will not be liable under the deposit agreement to you other than for our gross negligence, willful misconduct or bad faith. Neither we nor the depositary will be liable if we or the depositary is
prevented or delayed by law or any circumstance beyond its control in performing its obligations under the deposit agreement. Our and the depositary’s obligations under the deposit agreement will be limited to performance in good faith of our respective duties under the agreement. We and the depositary will not be obligated to prosecute or defend any legal proceedings relating to any depositary shares, common stock or preferred stock, as the case may be, unless a satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, or upon information provided by persons presenting shares of common stock or preferred stock, as the case may be, for deposit, you or other persons believed to be competent and on documents which we and the depositary believe to be genuine.
The following description of the warrants and terms of the warrant agreement is a summary. It summarizes only those aspects of the warrants and those portions of the warrant agreement which we believe will be most important to your decision to invest in our warrants. There may be other provisions in the warrant agreement and the warrant certificate relating to the warrants which are also important to you. You should read these documents for a full description of the terms of the warrants. The forms of the warrant agreement and the warrant certificate will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
General
We may issue warrants to purchase equity securities. We may issue warrants independently or together with any offered securities. The warrants may be attached to or separate from those offered securities. We will issue the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as described in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The prospectus supplement relating to any warrants that we may offer and sell all or a portionwill contain the specific terms of the warrants. These terms may include, but are not limited to, the following:
the title of the warrants;
the designation, amount and terms of the securities for which the warrants are exercisable;
the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security;
the price or prices at which the warrants will be issued;
the aggregate number of warrants;
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
the terms of any mandatory or optional redemption provisions relating to the warrants;
the terms of any right we have to accelerate the exercise of the warrants upon the occurrence of certain events;
if the warrants will be sold with any other securities, and the date, if any, on and after which those warrants and any other securities will be transferable;
the identity of the warrant agent;
if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
if applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the warrants;
• | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; |
the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
the maximum or minimum number of warrants which may be exercised at any time; and
information with respect to book-entry procedures, if any.
Exercise of Warrants
Each warrant will entitle the holder of warrants to purchase for cash the amount of equity securities, at the exercise price stated or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration date shown in the prospectus supplement relating to the warrants, unless otherwise specified in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as described in the prospectus supplement relating to the warrants. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the equity securities that the warrant holder has purchased. If the warrant holder exercises the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The following description of the subscription rights and terms of the subscription rights agreement is a summary. It summarizes only those aspects of the subscription rights and those portions of the subscription rights agreement which we believe will be most important to your decision to invest in our subscription rights. There may be other provisions in the subscription rights agreement and the subscription certificate relating to the subscription rights which are also important to you. You should read these documents for a full description of the terms of the subscription rights. The forms of the subscription rights agreement and the subscription certificate will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
General
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of the rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such rights offering. If we issue subscription rights, they may be governed by a separate subscription rights agreement that we will sign with a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to any holders of rights certificates or beneficial owners of rights.
In general, a right entitles the holder to purchase for cash a specific number of shares coveredof equity securities at a specified exercise price. The rights are normally issued to stockholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
the record date for stockholders entitled to receive the rights;
the number of equity securities that may be purchased upon exercise of each right;
the exercise price of the rights;
whether the rights are transferable;
the period during which the rights may be exercised and when they will expire;
the steps required to exercise the rights;
the price, if any, for the subscription rights;
the number of subscription rights issued;
the terms of the equity securities;
the extent to which the subscription rights are transferable;
if applicable, the material terms of any standby underwriting or other arrangement entered into by us in connection with the offering of subscription rights;
the other terms of the subscription rights, including the terms, procedures and limitations relating to the exercise of the subscription rights;
whether the rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments;
any applicable United States federal income tax considerations.
If fewer than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts, representing contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number of shares of common stock, shares of preferred stock, or other securities described in this prospectus or the applicable prospectus supplement at a future date or dates. The price per share may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase contracts. The share purchase contracts may be issued separately or as a part of share purchase units consisting of a share purchase contract and either shares of common stock, shares of preferred stock, debt obligations of third parties, including U.S. Treasury securities, any other security described in the applicable prospectus supplement, or any combination of the foregoing, securing the holder’s obligations to purchase the securities under the share purchase contracts.
The share purchase contracts may require us to make periodic payments to the holders of the share purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The share purchase contracts may require holders to secure their obligations thereunder in a specified manner. In certain circumstances, we may deliver newly issued prepaid share purchase contracts upon release to a holder of any collateral securing the holder’s obligations under the original share purchase contract.
The applicable prospectus supplement will describe the terms of the share purchase contracts or share purchase units. The description in the prospectus supplement will only be a summary, and you should read the share purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the share purchase contracts or share purchase units. Material United States federal income tax considerations applicable to the share purchase units and the share purchase contracts will also be discussed in the applicable prospectus supplement.
Each share purchase contract or share purchase unit and any related agreement will be governed by, and construed in accordance with, the laws of the State of New York.
We may sell securities offered by this prospectus from time to time in one or more transactions, including without limitation:
directly to one or anymore purchasers;
through agents;
in “at the market offerings” as defined in Rule 415(a)(4) under the Securities Act, into an existing trading market, or a securities exchange or otherwise;
to or through underwriters, brokers or dealers; or
through a combination of any of these methods.
A distribution of shares of our securities offered by this prospectus may also be effected through the following transactions:
issuance of derivative securities, including without limitation, warrants, subscriptions, exchangeable securities, forward delivery contracts and the writing of options. In addition, the manner in which we may sell some or all of the shares of our securities covered by this prospectus includes, without limitation, through:
on the Nasdaq Global Select Market, in the over the counter market or on any other national securities exchange on which our shares are listed or traded;
in privately negotiated transactions;
in underwritten transactions;
in a block trade in which a broker dealerbroker-dealer will attempt to sell the offered shares as agent, but may position andor resell a portion of the block, as principal, in order to facilitate the transaction;
through collared hedging transactions, whether through an options exchange or otherwise;
through purchases by a broker dealerbroker-dealer, as principal, and resale by the broker dealerbroker-dealer for its account pursuant to this prospectus;account;
ordinary brokerage transactions and transactions in which a broker solicits purchasers; or
privately negotiated transactions.
We may also enter into hedging transactions. For example, we may:
through any other method permitted by applicable law.
The selling stockholders may sell the shares at prices then prevailingenter into transactions with a broker-dealer or related to the then current market priceaffiliate thereof in connection with which such broker-dealer or at negotiated prices. The offering priceaffiliate will engage in short sales of the shares from time to time will be determined by the selling stockholders and, at the time of the determination, may be higher or lower than the market price of our common stock onpursuant to this prospectus, in which case such broker-dealer or affiliate may use shares of our common stock received from us to close out its short positions;
sell securities short and redeliver such shares to close out our short positions;
enter into option or other types of transactions that require us to deliver to a broker-dealer or an affiliate thereof, who will then resell or transfer shares of our common stock under this prospectus; or
loan or pledge shares of our common stock to a broker-dealer or an affiliate thereof, who may sell the Nasdaq Global Select Marketloaned shares or, in an event of default in the case of a pledge, sell the pledged shares pursuant to this prospectus.
In addition, we may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell shares of our securities covered by and pursuant to this prospectus and an applicable prospectus supplement or other offering materials, as the case may be. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell
the pledged securities pursuant to this prospectus and the applicable prospectus supplement or other exchangeoffering materials, as the case may be.
We may sell securities in and outside the United States through underwriters or market.dealers, directly to purchasers, including our affiliates, through agents, or through a combination of any of these methods.
The prospectus supplement will include the specific plan of distribution, which will include the following information:
terms of the offering;
the names of any underwriters, dealers or agents;
the name or names of any managing underwriter or underwriters;
the purchase price of the securities;
the net proceeds from the sale of the securities;
any delayed delivery arrangements;
any underwriting discounts, commissions and other items constituting underwriters’ compensation;
any public offering price;
any discounts or concessions allowed or reallowed or paid to dealers;
any commissions paid to agents; and
the terms of any arrangement entered into with any dealer or agent.
Sale Through Underwriters or Dealers
If underwriters are used in the sale of shares of our securities, the underwriters will acquire the securities for their own account. The underwriters may be offered toresell the public,securities from time to time through broker-dealers acting as agent or principal, including through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. TheUnderwriters may offer our securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in any prospectus supplement, the obligations of the underwriters to purchase the shares of common stocksecurities will be subject to certain conditions, and the conditions set forth inunderwriters will be obligated to purchase all the applicable underwriting agreement. Anyoffered securities if they purchase any of them. The underwriters may change from time to time any public offering price and any discounts or concessions allowed or reallowed or paid byto dealers.
During and after an offering through underwriters, the underwriters may purchase and sell our securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or dealers to other dealersbroker-dealers for the offered securities sold for their account may be changed from time to time.
In connection with an underwritten offering, underwritersreclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or agentscovering transactions. These activities may receive compensation instabilize, maintain or otherwise affect the form of discounts, concessions or commissions from the selling stockholders or from purchasersmarket price of the offered shares for whom theysecurities, which may act as agents. In addition,be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may sell the shares to or throughdiscontinue these activities at any time.
If dealers and those dealers may receive compensationare used in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. The selling stockholders and any underwriters, dealers or agents participating in a distribution of the shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any profit on the sale of the shares by the selling stockholders and any commissions received by broker dealers may be deemed to be underwriting commissions under the Securities Act.
We and the selling stockholders each may agree to indemnify an underwriter, broker dealer or agent against certain liabilities related to the selling of the common stock, including liabilities arising under the Securities Act. Under the Registration Rights Agreement, we have agreed to indemnify the selling stockholders against certain liabilities related to the sale of the common stock, including liabilities arising under the Securities Act. Under the Registration Rights Agreement, we have also agreed to pay the costs, expenses and fees of registering the shares of common stock; however, the selling stockholders will pay any underwriting discounts or commissions relating to the sale of the shares of common stock in any underwritten offering.
Each of the selling stockholders has advised us that it has not entered into any agreements, understandings or arrangements with any underwriters or broker dealers regarding the sale of its shares. Upon our notification by the selling stockholders that any material arrangement has been entered into with an underwriter or broker dealer for the sale of shares through a block trade, special offering, exchange distribution, secondary distribution or a purchase by an underwriter or broker dealer,of our securities, we will file asell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing certain material information, including:
the namenames of the selling stockholder;
the number of shares being offered;
dealers and the terms of the offering;transaction.
the names of the participating underwriters, broker dealers or agents;
any discounts, commissions or other compensation paid to underwriters or broker dealers and any discounts, commissions or concessions allowed or reallowed or paid by any underwriters to dealers;
the public offering price; and
other material terms of the offering.
The selling stockholdersWe are subject to the applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including Regulation M. This regulationRegulation M may limit the timing of purchases and sales of any of the shares of common stocksecurities offered in this prospectus by the selling stockholders.prospectus. The anti-manipulation rules under the Exchange Act may apply to sales of shares in the market and to the activities of the selling stockholders and their affiliates.market. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of the sharesour securities to engage in market makingmarket-making activities for the particular securities being distributed for a period of up to fivetwo business days before the distribution. The restrictions may affect the marketability of the sharessecurities and the ability of any person or entity to engage in market makingmarket-making activities for the shares.securities.
To facilitateDirect Sales and Sales Through Agents
We may sell our securities directly, and not through underwriters or agents. Our securities may also be sold through agents designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell our securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act, with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase our securities from us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
Institutional Purchasers
We may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement or other offering materials, as the case may be, will provide the details of any such arrangement, including the offering price and commissions payable on the solicitations.
We will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Market-Making, Stabilization and Other Transactions
There is currently no market for any of shares covered by this prospectus, certain persons participatingthe offered securities, other than our common stock that is listed on The Nasdaq Global Select Market. If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intends to make a market in the offering may engage in transactions that stabilize, maintain or otherwise affectoffered securities, such underwriter would not be obligated to do so, and any such market-making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the price of the shares of common stock. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in theoffered securities.
In connection with any offering of moreour securities, than the selling stockholders sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these personsunderwriters may stabilize or maintain the price of thepurchase and sell our securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may include short sales, syndicate covering transactions and stabilizing transactions. Short sales involve syndicate sales of shares of our common stock in excess of the number of shares to be discontinuedpurchased by the underwriters in the offering, which creates a syndicate short position. “Covered” short sales are sales of shares made in an amount up to the number of shares represented by the underwriters’ over-allotment option. In determining the source of shares to close out the covered syndicate short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. Transactions to close out the covered syndicate short involve either purchases of shares of our common stock in the open market after the distribution has been completed or the exercise of the over-allotment option. The underwriters may also make “naked” short sales of shares in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing shares of common stock in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of bids for or purchases of shares in the open market while the offering is in progress for the purpose of pegging, fixing or maintaining the price of the securities.
In connection with any offering, the underwriters may also engage in penalty bids. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of these transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
InGeneral Information
We may have agreements with the agents, dealers and underwriters to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters may be customers of, engage in transactions with or perform services for, us in the ordinary course of their business activities, any underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve securities and instruments of the Company.businesses.
To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution.
Instead of selling the shares of common stock under this prospectus, the selling stockholders may sell the shares of common stock in compliance with the provisions of Rule 144 under the Securities Act, if available, or pursuant to other available exemptions from the registration requirements of the Securities Act.
TheCertain legal matters with regard to the validity of the shares of common stocksecurities offered pursuant to this prospectus and any prospectus supplement will be passed upon for us by Kirkland & Ellis LLP, Chicago, Illinois.Illinois, and for any underwriters or agents by counsel named in the applicable prospectus supplement.
The consolidated financial statements of the CompanyRuth’s Hospitality Group, Inc. and subsidiaries as of December 27, 200929, 2019 and December 30, 2018, and for each of the years in the three yearthree-year period ended December 27, 200929, 2019 and themanagement’s assessment of the effectiveness of internal control over financial reporting as of December 27, 2009 included in the Company’s Annual Report on Form 10-K, which is incorporated by reference in this registration statement,29, 2019 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, an independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public on the SEC’s website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.rhgi.com. Our website is not part of this prospectus and is not incorporated by reference into this prospectus.
This prospectus is part of a registration statement filed on Form S-3 with the SEC under the Securities Act. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. For further information concerning us and the securities, you should read the entire registration statement and the additional information described under “Incorporation of Certain Information by Reference” below. The registration statement has been filed electronically and may be obtained in any manner listed above. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference.
The SEC allows us to incorporate by reference much of the information that we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must read all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (in each case, other than those documents or the portions of those documents not deemed to be filed):
Ruth’s Hospitality Group, Inc.’s Annual Report on Form 10-K for the year ended December 29, 2019 filed on February 27, 2020;
Common StockRuth’s Hospitality Group, Inc.’s Annual Report on Form 10-K/A for the year ended December 29, 2019 filed on March 2, 2020;
Ruth’s Hospitality Group, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 29, 2020, filed on May 8, 2020;
Ruth’s Hospitality Group, Inc.’s Current Reports on Form 8-K filed on March 18, 2020, March 31, 2020, April 13, 2020, April 24, 2020 and May 8, 2020 (excluding any portions of such reports that were “furnished” rather than “filed”);
PROSPECTUS
TheWe also incorporate by reference the information contained in all other documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than those documents or the portions of those documents that are either (1) described in paragraph (e) of Item 201 of Registration S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K (including any exhibits included with such items), unless otherwise indicated therein) after the date of this prospectus is , 2011.
You should rely only onand prior to the termination of the offerings under this prospectus. The information contained in any such document will be considered part of this prospectus from the date the document is filed with the SEC.
Any statement contained in a document incorporated or incorporated by reference in this prospectus. We have not authorized anyonedeemed to provide you with different information. You should not assume that the information contained orbe incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is accurateor is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as of any date other than the dateso modified or superseded, to constitute a part of this prospectus. We are not making an offer
You may request copies of these securities in any state where the offer is not permitted.filings at no cost to you by writing or telephoning us as follows:
Ruth’s Hospitality Group, Inc.
1030 W. Canton Avenue, Suite 100,
Winter Park, FL 32789
(407) 333-7400
Attention: Corporate Secretary
Exhibits to the filings will not be sent, unless those exhibits have been specifically incorporated by reference in this prospectus.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The following is a statementtable sets forth the estimated fees and expenses payable by us in connection with the issuance and distribution of the estimated expenses,securities being registered hereby, other than underwriting discounts and commissions, to be incurred by the registrant in connection with a distribution of securities registered under this registration statement on Form S-3.commissions:
Securities and Exchange Commission Registration Fee | $ | 4,749.10 | ||
FINRA Filing Fee | (1 | ) | ||
Legal Fees and Expenses | (1 | ) | ||
Accounting Fees and Expenses | (1 | ) | ||
Printing and Delivery Expenses | (1 | ) | ||
Miscellaneous Expenses | (1 | ) | ||
Total | $ | (1 | ) |
| Amount to |
Securities and Exchange Commission registration fee | $9,735 |
Printing expenses | * |
Accounting fees and expenses | * |
Legal fees and expenses | * |
Rating agency fees and expenses | * |
Miscellaneous expenses | * |
Total | $* |
____________
* | Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in |
Item 15. | Indemnification of Directors and Officers. |
Delaware
Section 145 of the DGCL authorizes a corporation, subject to the procedures and limitations stated therein,under certain circumstances, to indemnify its directors, officers, employees and agentsany person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that the person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of that corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses including(including attorneys’ fees,fees), judgments, fines and amounts paid in settlement actually and reasonably incurred provided they actby such person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and withcorporation. With respect to any criminal action or proceeding, theysuch indemnification is available if he or she had no reasonable cause to believe theirhis or her conduct was unlawful. In
Section 145 of the case of proceedings brought by orDGCL also empowers a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of such corporation against liability asserted against or incurred by him in any such capacity, whether or not such corporation would have the corporation, indemnification is limitedpower to expenses and is not permitted ifindemnify such person against such liability under the individual is adjudged liableprovisions of Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation unlessor its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the court determines otherwise. The statute provides that indemnification pursuantliability of a director (a) for any breach of the director’s duty of loyalty to the corporation or its provisions isstockholders, (b) for acts or omissions not exclusivein good faith or which involve intentional misconduct or a knowing violation of other rightslaw, (c) under Section 174 of indemnificationthe DGCL (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) or (d) for any transaction from which a person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.the director derived improper personal benefit.
II-1
As permitted by the DGCL, we have included in Article Seven of our Amended and Restated Certificate of Incorporation provides fora provision to limit the limitation ofpersonal liability of our directors and for the indemnification of directors and officers. Article Seven states that to the fullest extent permitted by the DGCL, (i) no director of the Company shall be liable to the Company or its stockholders for monetary damages arising from a breach of their fiduciary dutyduties owed to the Company or its stockholders; and (ii) the Company shallstockholders. In addition, our Certificate of Incorporation provides that we are required to indemnify itsour officers and directors.directors under certain circumstances.
The foregoing is only a general summary of certain aspects of Delaware law and our Certificate of Incorporation, and does not purport to be complete. It is qualified in its entirety by reference to the detailed provisions of the DGCL and our Certificate of Incorporation.
Item 16. Exhibits.
Exhibit No. | Description | ||
1.1 | Form of Underwriting Agreement.* | ||
3.1 | |||
3.2 | |||
3.3 | |||
3.4 | |||
4.1 | |||
4.2 | Form of Certificate of Designation.* | ||
4.3 | Form of Deposit Agreement (including form of depositary receipt).* | ||
4.4 | Form of Warrant Agreement (including form of Warrant Certificate).* | ||
4.5 | Form of Subscription Agent Agreement.* | ||
4.6 | Form of Subscription Certificate.* | ||
4.7 | Form of Certificate evidencing Debt Securities (including form of notation of guarantee).* | ||
4.8 | Form of Share Purchase Contract Agreement.* | ||
4.9 | Form of Depositary Agreement relating to Share Purchase Contracts.* | ||
5.1 | |||
23.1 | |||
Reference is made to the attached Exhibit Index.
II-1
Consent of Kirkland & Ellis LLP (set forth in Exhibit 5.1) | |||
24.1 | Powers of attorney (included on the signature pages of the Registration Statement). | ||
* | To be filed as an exhibit to a Current Report on Form 8-K or other document to be incorporated by reference herein or to a post-effective amendment hereto, if applicable. |
Item 17. Undertakings.
(a) | The undersigned registrant hereby undertakes: |